[2022] KEPPDT 958 (KLR)

Musyoki v United Democratic Alliance & 4 others (Complaint E014 (NRB) of 2022) [2022] KEPPDT 958 (KLR) (Civ) (5 May 2022) (Judgment)

Neutral citation: [2022] KEPPDT 958 (KLR)

Republic of Kenya

In the Political Parties Disputes Tribunal

Civil

Complaint E014 (NRB) of 2022

D. Nungo, Chair, K.W Mutuma, FM Mtuweta & Ruth Wairimu Muhoro, Members

May 5, 2022

Between

Munguti Abednego Musyoki

Complainant

and

United Democratic Alliance

1st Respondent

Uda - National Elections Board

2nd Respondent

Daniel Obiri Omari

3rd Respondent

David Kathya Musyoki

4th Respondent

Pacicollia Nthambi Mwanzia

5th Respondent

Judgment

Introduction 1. The Complainant and the 3rd, 4th and 5th Respondents are members of the 1st Respondent, United Democratic Alliance (UDA) – a political party in Kenya. They were all cleared by the party to contest for the UDA party ticket for the position of Member of County Assembly, Syokimau Mulolongo Ward. They participated in the party’s direct nomination exercise that was held on 14th April 2022 where the Complainant was declared the winner and issued with a provisional certificate of nomination.

2. The 3rd, 4th and 5th Respondents were dissatisfied with the Complainant’s victory and consequential issuance of a Nomination Certificate. They alleged that the Complainant was not a registered aspirant as at the date of the party’s deadline for registration of aspirants on 5th March 2022. The 3rd Respondent accordingly filed a Complaint with the UDA Electoral and Nominations Dispute Resolution Committee (EDRC) being EDRC Application No. 58 of 2022 challenging the nomination exercise and the success of the Complainant as declared by the Returning Officer. The EDRC heard the matter in the absence of the Complainant and delivered its ruling on 21st April 2022 in favour of the 3rd Respondent. A determination was made that the nomination exercise was non-compliant with the law and orders were issued for repeat elections to be held.

3. Aggrieved by the determination, the Complainant filed the instant Complaint together with a Notice of Motion Application dated 21st April 2022 under a Certificate of Urgency. Pursuant to his Complaint filed herein, he seeks the following reliefs from this Tribunal:-i.An order of permanent injunction restraining the Respondents from cancelling the nomination of the Complainant and holding repeat or fresh nomination elections in Member of County Assembly Syokimau Mlolongo Wardii.An order declaring the public notice of 19th April 2022 calling for repeat nominations in Syokimau Mlolongo Ward as null and voidiii.Costs of the suit

4. The Tribunal upon consideration of the matter under certificate of urgency issued directions for service and further issued interim ex-parte orders restraining the Respondents from conducting repeat nominations on 22nd April 2022. The application was listed for inter partes hearing on 23rd April 2022.

5. That on the date of hearing the application inter partes, there was no appearance for the Respondents. We sought to be addressed on the question of service upon the Respondents in the first instance and were directed to an Affidavit of service that was sworn by a licensed process served named Nephat Mukundi and filed on 23rd April 2022. The Tribunal perused the Affidavit and was satisfied that service had been demonstrated. The application therefore proceeded for hearing and being unopposed at the material time, we allowed the same in terms of prayer number (c) of the application which read thus “That the ruling issued by the United Democratic Alliance Electoral & Nominations Disputes Resolution Committee be set aside”.

6. Having dispensed with the application, we issued directions for filing of written submissions and hearing of the Complaint on 27th April 2022. The Complainant was directed to serve notices upon all the Respondents of the hearing date.

7. On the 27th April 2022 when the matter came up for hearing, there was still no appearance for the 1st, 2nd 4th and 5th Respondents despite service as demonstrated by the return of service sworn by one Nephat Mukundi on 26th April 2022. The 3rd Respondent Mr. Daniel Obiri on the other hand appeared in person and requested for an adjournment to enable him instruct counsel to represent him in the matter. We adjourned the matter in the interest of justice whilst issuing the following directions:-i.That all the Respondents to file and serve their responses together with their written submissions by 2pm on 28th April 2022ii.The Complainant to file and serve Further reply if need be together with Submissions by 2pm on 29th April 2022iii.Complaint to be heard on 29th April 2022 at 3pm by way of highlighting of submissions.iv.Notice of hearing and these directions to be served upon the Respondents and a return of service to be duly filed.

8. Pursuant to our above directions, parties appeared before the Tribunal on 29th April 2022 when the Complaint proceeded for hearing as scheduled. The Complainant was represented by Mr Gachomo Advocate, the 1st and 2nd Respondents were represented by Ms Tusiime Advocate and the 3rd Respondent was represented by Mr Nyamwaya Advocate. The 4th and 5th Respondents were present in person though they indicated to the Tribunal that they did not intend to file and documents or make any submissions on the matter.

The Complainant’s Case 10. It is the Complainant’s case that he was issued with a provisional certificate by the 2nd Respondent’s Returning Officer, Jennifer Mutua after winning the party primaries for the seat of MCA Syokimau Mlolongo Ward on 14th April 2022. Furthermore, a petition was presented by the 3rd Respondent to the 1st Respondent’s Electoral and Nomination Dispute Resolution Committee (EDRC) to contest the decision to declare the Complainant a winner and issue the Complainant with a provisional certificate.

11. The 1st Respondent’s EDRC determined that the success of the Complainant was obsolete and scheduled repeat nomination elections for 22nd April 2022. The Complainant was dissatisfied with the decision of the EDRC. He avers that the decision was issued without any written notice to him, and he was neither served with the petition, nor participated in the proceedings. He firmly states that he was not given a reasonable opportunity to be heard and is thus highly prejudiced by the outcome of the EDRC.

12. The Complainant, in his written submissions, relied on Article 50 of the Constitution of Kenya that relates to the right to a fair hearing. Moreover, that he was not served with any pleadings in regards to the dispute presented before the EDRC of the 1st respondent which is contravention to Order 5 of the Civil Procedure Act and Rules.

13. The Complainant expressed apprehension that the 2nd Respondent would proceed to conduct repeat elections since the ballot documents and equipment for the repeat elections have already been prepared. Additionally, that his win would be rendered obsolete and the voice of the majority watered down if the repeat elections was allowed to proceed.

14. In a further affidavit filed on 2nd May 2022, the Complainant responded to the Replying Affidavit by the 3rd Respondent filed on 28th April 2022 and avers that his membership for the Syokimau Mlolongo on the UDA ticket has never been in doubt.

15. The Complainant discredits the allegations of bribery and says that it is a well-known game by the parties to discredit the election process by sending unsolicited funds to a returning officer and thereafter accusing the returning officer of receiving bribes. The Complainant avers that there is no proof that he sent any money to the returning officer and that the person named “Anthony” that sent the money is unknown to him.

16. The Complainant further responds to the 1st and 2nd Respondents and notes that they acknowledged in their response that the UDA Party EDRC declared that the elections were free, fair and verifiable. On the issue of service, the Complainant maintains that he was never served with the proceedings in the EDRC and the annexed documents are forgeries which are not supported by an Affidavit of service by the process server. The Complainant further avers that it is true that the 3rd Respondent was involved in violence.

17. The Complainant states that there is no reason that would necessitate a repeat of the elections as ordered by the EDRC and he urges the Honourable Tribunal to allow the Application and Complaint and declare him the UDA nominee for the Syokimau Mlolongo Ward.

The 1st and 2nd Respondents’ Case 18. The 1st and 2nd Respondents filed a Statement of Response dated 30th April 2022 in which they confirm that the Complainant, 3rd, 4th and 5th Respondents were all successfully cleared to participate in the nominations on 14th April 2022 for the party’s nominee position for Member of County Assembly, Syokimau Mlolongo Ward. They further state that the Complainant was declared the winner after the hotly contested primaries and issued with the provisional certificate of nomination on 16th April 2022.

19. The 3rd Respondent was aggrieved with the nomination exercise and the decision of the Returning Officer and filed a complaint at the EDRC. The Complainant was named in the dispute as the 3rd Respondent and service was effected upon all parties which was proved as satisfactory by the EDRC. The Complainant did not appear and defend himself, however, the 2nd Respondent responded to the Complaint defending the integrity of the nomination exercise.

20. The 1st and 2nd Respondents aver that upon hearing and determination of the dispute, the EDRC determined that the nomination exercise was substantially non-compliant with the law and gave an order that the same be repeated. The repeat nominations were however not held as the Honourable Political Parties Disputes Tribunal issued a restraining order on 22nd April 2022. The 1st and 2nd Respondents aver that the ruling of the EDRC was not interlocutory. The determination was made after consideration of the representation of the rival positions of the parties, save for the Complainant who did not enter appearance to defend himself. Further, after the determination of the EDRC, the Complainant did not file any application for review before the Committee even though the Committee has jurisdiction to review its orders as the circumstances of each case may demand.

21. The 1st and 2nd Respondents state that the Complaint before the Tribunal seeks determination of whether service on the Complainant was affected or not. They aver that this decision may not be competently made by the Honourable Tribunal as it does not have the record of the UDA EDRC and it cannot request for the same as the Tribunal has not been moved on its appellate jurisdiction.

22. The 2nd Respondent avers that it is ready to conduct repeat election nominations as directed by the EDRC. The 1st and 2nd Respondents pray for the Honourable Tribunal to refer the matter back to the EDRC to undertake repeat nominations in line with the Party’s Constitution as directed by the EDRC.

The 3rd Respondent’s Case 23. The 3rd Respondent filed his replying affidavit to the complaint dated 28th April 2022 and served the same upon the Complainant. He avers that he filed a Petition to challenge the UDA party nominations and results for Member of County Assembly for Syokimau Mlolongo Ward that were held on the 14th of April 2022.

24. The 3rd Respondent avers that the Applicant was an aspirant but had not been registered as a nominee at the time of the party’s official deadline of 5th March 2022. At the time of the deadline only 3 aspirants were registered for Syokimau Mlolongo Ward. The 3rd Respondent further avers that there was rampant bribing of voters and the returning officer at the polling stations and form 6A was irregularly issued. That the issue of bribery was placed before the EDRC in Application No. 58 of 2022 where the Complainant chose not to participate. The 3rd Respondent also states that the Nomination Certificate was irregularly issued to the Complainant as he was not a registered member of the Party at the official registration deadline on 5th March 2022.

25. The 3rd Respondent states that the Petition before the EDRC was duly served on all parties and that all the respondents participated in the apart from the Complainant. Further, the 3rd Respondent avers that there is no contention that the way the nominations were conducted was not free, fair and verifiable. In his response dated 30th April 2022, the 3rd Respondent denies that his agents signed the tallying documents as his agents were chased away and/or side-lined therefore giving room for interference of the nomination results.

26. Additionally, the 3rd Respondent denies the allegations that the Complainant will suffer prejudice if the nominations are repeated as ordered by the EDRC and puts the Complainant to strict proof thereof.

27. The 3rd Respondent also avers that this Honourable Tribunal lacks jurisdiction to entertain this complaint under the doctrine of exhaustion as the Complainant has not met his burden of proof to the required threshold. Therefore, the 3rd Respondent prays for the complaint by the Complainant to be dismissed in its entirety and that the decision of the EDRC in UDR No. 58 of 2022 delivered on 21st April 2022 be upheld. The 3rd Respondent also prayed for costs.

The 4th and 5th Respondents’ Case. 28. The 4th and 5th Respondents as we have already stated above appeared in person and upon being informed by the Tribunal of their right to reply, they indicated that they did not intend to file any documents. They did not also make any submissions on the matter but just followed the proceedings.

Issues for Analysis and Determination 29. Flowing from the Parties’ pleadings and submissions, we have isolated the following issues for determination.i.Whether this tribunal has jurisdiction to hear and determine this matterii.Whether we should review our orders issued on 23rd May 2022 setting aside the EDRC Ruling delivered on 21st April 2022iii.Whether the Complaint is meritediv.What are the appropriate remedies in the present case

Whether this tribunal has jurisdiction to hear and determine this matter? 30. The 3rd Respondent has challenged our jurisdiction to hear this matter. In his Statement of Response dated 30th April 2022, he affirms that under the doctrine of exhaustion, the Tribunal lacks the jurisdiction to determine this matter since the Complainant failed to participate in the party’s dispute resolution mechanism (see paragraph 12 of the statement of response). On the inverse, the Complainant by virtue of seeking this tribunal’s intervention impliedly submits to its jurisdiction.

31. In addressing itself to the issue of jurisdiction, the Tribunal ought to interrogate the provisions of Section 40 of the Political Parties Act (PPA) that lay out the general principles on the jurisdiction of the Tribunal;1. The Tribunal shall determine-a.Disputes between members of a political party;b.Disputes between members of a political party and the political party;b.Disputes between political parties

2. Notwithstanding subsection (1) the tribunal shall not hear or determine a dispute unless a party to the dispute adduces evidence of an attempt to subject the dispute to the internal political party dispute resolution mechanisms.

32. The dispute before the Tribunal arose out of party nominations and is therefore covered under Section 40 of the PPA. Section 40(2) of the PPA is categorical on the limits of the Tribunal’s jurisdiction by mandating that it is necessary to show that there was an attempt to subject the dispute to the Internal Political Party Dispute Resolution Mechanisms (IDRM) prior to seeking this Tribunal’s intervention.

33. Furthermore, the UDA Party Constitution in Article 31 establishes the EDRC whose function is to receive, hear and decide nomination disputes. Pursuant to Article 31 viii of UDA’s Constitution the decision of the EDRC is final thus effectively voiding any efforts to further engage in internal dispute resolution mechanisms within the party.

34. In addition, Section 40(2) of the Act does not give, in mandatory terms, any specific requirements that the Complainant before the Tribunal must be the party who made an attempt to subject the matter to the internal EDRC mechanism. The only qualifier to the said section is that such an attempt exists. Thus, in our view the existence of the case before the EDRC (i.e., EDRC No 58 of 2022) is illustrative of an engagement with the party’s relevant internal dispute resolution mechanism regarding matters giving rise to the same and emanating from the primaries undertaken on 14th April 2022. We note however that the objection to this Tribunal’s jurisdiction is hinged on the doctrine of exhaustion i.e., that the Complainant exhaust the internal dispute resolution mechanism of the party. The Tribunal has had to inquire therefore as to whether the party’s dispute resolution mechanism under the EDRC presented the Complainant with any room for further engagement.

35. The factual evidence before the Tribunal shows that the dispute presented by the 3rd Respondent before the EDRC mechanism culminated in the ruling of the Committee dated 21st April 2022. As noted earlier (paragraph 28), Article 31 of the party’s constitution makes it clear that the decision of the EDRC is final, and there exists no room for appeal and/or review under the party’s internal dispute resolution mechanism. The Tribunal is thus inclined to reject the argument by the 3rd Respondent on the principle of exhaustion as a barrier to its jurisdiction.

36. It is therefore our opinion that being no other modes of seeking redress within the party after the determination of the EDRC, the Complainant was rightfully entitled to move this Tribunal and as such we reach the conclusion that the Tribunal is correctly seized of jurisdiction in this matter as qualified under section 40(2) of the PPA.

Whether we should review our orders issued on 23rd May 2022 setting aside the EDRC Ruling delivered on 21st April 2022 37. As we have already stated above, this matter came up before the Tribunal on 23rd April 2022 for hearing of the Complainant’s application dated 21st April 2022. The Respondents did not attend the hearing despite service having been effected upon them as demonstrated by the afore-mentioned affidavit of service sworn by the said Nephat Mukundi and filed on 23rd April 2022. Upon consideration of the application and the oral submissions of counsel and noting that the application was in any event unopposed, we granted orders setting aside the EDRC Ruling subject hereof. Parties have, however, presented submissions before us in respect of the EDRC proceedings without bearing in mind that we had already set aside the EDRC Ruling vide our orders of 23rd April 2022.

38. We note that pursuant to Regulation 33(1) of the Political Parties Disputes Tribunal (Procedure) Rules, the Tribunal may of its own motion or upon application by an aggrieved party review its decisions or orders. On the strength of this regulation, and bearing in mind that the Respondents were not heard prior to issuance of our orders setting aside the EDRC ruling, we have in the interest of justice elected to re-evaluate all the evidence now availed before us by all parties with a view to determining whether we may review our order setting aside the EDRC Ruling.

39. From our examination of the evidence on record, it is not in dispute that the 3rd Respondent filed EDRC Application Number 58 of 2022 seeking to nullify the nomination process and an order for new or fresh nominations. This application was heard in the absence of the Complainant, and ultimately led to a decision for repeat nominations in Syokimau Mlolongo Ward.

40. The Complainant avers that he was not served with any pleadings, that he had not instructed any advocate to accept service on his behalf or to appear for him in the matter, and that the purported service to him was flawed and ineffective in law. The Complainant also notes that he learnt about the repeat nomination elections through the media. Conversely, the 3rd Respondent avers that the Complainant was served with the pleadings and has tendered evidence in support of the same being a screenshot of a WhatsApp message dated 16th April 2022.

41. This Tribunal observes that the right to a fair hearing is enshrined in the Bill of Rights of the Constitution of Kenya. Article 47 of the Constitution requires every person who is a subject of an administrative action to be accorded an expeditious, efficient, lawful, reasonable, and procedurally fair opportunity to present their case. Moreover, Article 50 (k) in fact provides that one must be accorded the opportunity to adduce and challenge evidence. Furthermore, the Fair Administrative Actions Act, 2015, provides that an administrator of action is obligated to accord the person against whom administrative action is taken the chance to attend the proceedings in person or through a representative, to be heard, cross examine persons giving adverse evidence against him/her and request for adjournment of the proceedings. Finally, under Article 50 (1) of the Constitution of Kenya 2010-“Every person has a right to have any dispute which can be resolved by the application of law decided in a public and fair hearing, before a court and, if appropriate, another independent and impartial tribunal or body “

42. In the present matter, the Tribunal has been presented with evidence by the 3rd Respondent being a screenshot of purported service via WhatsApp dated 16th April 2022. The UDA Rules of Procedure stipulate the rules relating to proof of service thus: “The person serving a document under these Regulations shall swear and annex or cause to be annexed to the original document an affidavit of service stating the time and manner in which the document was served.” None of the documents presented to the Tribunal for its analysis have demonstrated such proof of service to the Complainant during proceedings at the EDRC in the prescribed form. In any case, the screenshot annexed by the 3rd Respondent as evidence is not clear enough to deduce that the service was actually done on the Complainant. In saying so, the Tribunal has considered the fact that the evidence in question is a series of screenshots indicative of messages to various recipients. Further, it does not help the 3rd Respondent’s case that the screenshot does not show clearly that it was indeed the Complainant that received the message relied on by the 3rd Respondent as proof of service. It would have perhaps been beneficial if the Tribunal had been treated to proof that the number to which the alleged message was sent was registered to the Complainant.

43. In light of the foregoing, we hereby find that the Complainant was not granted fair hearing by the Election and Nomination Dispute Resolution Committee of the 1st Respondent in accordance with the Constitution of Kenya and the Fair Administrative Action Act within the confines of the nomination rules of the 1st Respondent. The consequential effect is that the EDRC proceedings and the consequential ruling delivered on 21st April 2022 is for setting aside. We accordingly find no justifiable basis for reviewing our orders issued on 23rd April 2022 setting aside the EDRC Ruling delivered on 21st April 2022. The same remain in force.

Whether the Complaint is merited 44. The gravamen of the Complainant’s case is that the nullification of his nomination and call of repeat elections without granting him a hearing before the EDRC was unlawful.

45. The Respondents have in opposition to the Complaint pleaded various irregularities in respect of the nominations subject hereof. These include allegations of bribery, violence, ballot staffing, voter intimidation amongst other allegations as already highlighted above. The 3rd Respondent further avers that the Complainant was not a registered aspirant as at 5th March 2022 being the deadline date that the party had set for registering the aspirants.

46. The irregularities have been denied and specifically responded to by the Claimant in his Further Affidavit sworn on 2nd May 2022 wherein he maintains that he had been cleared by the party as an aspirant and denies allegations of bribery and knowledge of Anthony. He further refers the Tribunal to the party’s Affidavit that was filed at the EDRC where the party alluded to the fact that the nominations were free fair and verifiable.

47. As we consider this contested question of validity of the nominations held on 14th April 2022, we remain alive to the law and the principles that have been set out in numerous judicial authorities on this subject.

48. In Philip Kyalo Kituti Kaloki v Independent Electoral and Boundaries Commission & 2 others [2018] eKLR“…The burden of proof in election petitions is very high, often said to be above the civil standard of ‘a balance of probabilities’. Where cogent evidence is not led to show, to the standard required, that bribery took place, then the court cannot make a finding that it did.We do not agree that the election court erred by excluding the evidence of the prior conduct of the 3rd respondent’s husband. While he may have been implicated in a prior report of a tribunal for the offence of bribery, for the court to rely only on this would have amounted to relying on extraneous material. What the appellant was required to show was that he undertook the activities complained of in the course of the election that was held in Kibwezi East Constituency on 8th August 2017. The appellant failed to discharge this burden…”

49. In John Harun Mwau & 2 others v Independent Electoral and Boundaries Commission & 2 others [2017] eKLR; Petitions Nos. 2 and 4 of 2017 the Supreme Court at paragraph 373 restated the law on the effect of illegalities and irregularities on an election as follows:“This Court has already pronounced itself in unequivocal terms, on the effect of irregularities upon an election. The legal position remains as stated in the majority decision of the Court in Raila 2017… This may be simply restated: not every irregularity or procedural infraction is enough to invalidate an election. The irregularities must be of such a profound nature as to affect the actual result, or the integrity of an election, for a Court of law to nullify the same.”

50. We have examined the evidence furnished and we are not convinced that the Respondents have met the burden and standard of proof expected in election/nomination petitions. The 3rd Respondent avers that the Complainant wasn’t a registered aspirant as at 5th March 2022 and has produced a list aspirants as at 5th March 2022. We have perused the produced list of aspirants and we note that the same does not bear any date and does not even show the originator thereof. From the subject list, it is only the 4th and 5th Respondents that have been listed for Syokimau Mulolongo Ward, not even the 3rd Respondent himself. Most importantly, we have seen email from the UDA party dated 2nd May 2022 confirming that the Complainant had successfully registered for UDA nominations.

51. With respect to allegations of voter bribery, we have seen the mpesa transaction and we note that there is no direct evidence that links the Complainant with the transaction. The allegations of violence have not been substantiated and in fact the Complainant claims that it is the 3rd Respondent who is attributable to any violence given the charges that were preferred against him. Incidents of voter intimidation have also not been substantiated.

52. Applying the already set out principles on evidence, burden and standard of proof in election and nomination petitions, we are of the considered opinion that the 3rd Respondent has not discharged the burden and standard of proof. Neither has he met the threshold set for nullification of the nominations. In any event, he has not even counter claimed for nullification of the nominations of 14th April 2022.

53. Taking into consideration the totality of the circumstance of this case, we find that the Complaint is merited and we accordingly allow the same. To this extent, we therefore disallow the counter claim by the 3rd Respondent.

54. With respect to costs, we are of the considered view that each party bears its own costs of these proceedings in the interest of fostering party unity.

Disposition 54. In light of the foregoing, we grant the following orders: -i.That the Tribunal has jurisdiction to hear and determine this matter.ii.That our order issued on 23rd April 2022 setting aside the Electoral and Nominations Disputes Resolution Committee (EDRC) decision delivered on 21st May 2022 in EDRC Application Number 58 of 2022 remains in force.iii.A permanent order for injunction be and is hereby issued restraining the Respondents from cancelling the nomination of the Complainant and holding repeat or fresh nomination elections in Member of County Assembly Syokimau Mlolongo Wardiv.That each party shall bear their own costs.

DATED AND DELIVERED AT NAIROBI THIS 5TH DAY OF MAY 2022. DESMA NUNGO……………………………………………-(CHAIRPERSON)DR. KENNETH MUTUMA…………….……..…..-(MEMBER)FLORA M. MAGHANGA-MTUWETA…………………………-(MEMBER)RUTH WAIRIMU MUHORO …………………………...-(MEMBER)